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HOOVER v. STATE OF NORTH CAROLINA Doc.

IN THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ANTHONY LEON HOOVER, )


)
Petitioner, )
)
v. ) 1:06CV1018
)
STATE OF NORTH CAROLINA, )
)
Respondent. )

ORDER AND RECOMMENDATION


OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, has submitted a paper writing

which the Court has reviewed and construes to be a petition under 28 U.S.C. § 2254 for writ

of habeas corpus by a person in state custody. The Clerk of Court received the submission

on November 14, 2006, which Petitioner had dated as of November 2, 2006. For the

following reasons, the petition cannot be further processed.

1. Petitioner has not used the required § 2254 Forms. Rule 2, R. Gov. § 2254
Cases. The Clerk will forward to Petitioner the proper forms.

2. Petitioner has failed to indicate that state court remedies have been exhausted.
[28 U.S.C. § 2254(b).]

3. Filing fee was not received or affidavit to proceed in forma pauperis was not
submitted or signed by Petitioner. [Attached instructions and Rule 3(a), Rules
Governing § 2254 Cases.]

4. Petitioner appears to include some claims regarding his medical treatment in


prison which have nothing to do his conviction and which would need to be
raised in a separate proceeding.

Dockets.Justia.com
Case 1:06-cv-01018-JAB-WWD Document 3 Filed 11/21/2006 Page 1 of 2
Because of these pleading failures, this particular petition should be filed and then

dismissed, without prejudice to Petitioner filing a new petition on the proper habeas corpus

forms with the $5.00 filing fee, or a completed application to proceed in forma pauperis, and

otherwise correcting the defects noted. The Court has no authority to toll the statute of

limitation, therefore it continues to run, and Petitioner must act quickly if he wishes to pursue

this petition. See Spencer v. Sutton, 239 F.3d 626 (4th Cir. 2001). To further aid Petitioner,

the Clerk is instructed to send Petitioner a new application to proceed in forma pauperis, and

new § 2254 forms.

In forma pauperis status will be granted for the sole purpose of entering this Order and

Recommendation.

IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole

purpose of entering this Order. The Clerk is instructed to send Petitioner § 2254 forms,

instructions, and a current application to proceed in forma pauperis.

IT IS RECOMMENDED that this action be filed, but then dismissed sua sponte

without prejudice to Petitioner filing a new petition which corrects the defects of the current

petition.

_____________________________________
Wallace W. Dixon, U. S. Magistrate Judge

November 21, 2006

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